I read that the Supreme Court has recently held that advocates are not liable under the Consumer Protection Act (CPA) to compensate for the losses suffered by their clients on account of negligent service rendered by them. My complaint against an advocate is pending before the district forum since 2018. Will this complaint become null and void? In such circumstances, can I take this case to civil court?
Swanand Gupte, Ghatkopar
It is true that the SC, vide its judgment of April 22, has held that the service rendered by an advocate is a service under a “contract of personal service” and therefore would fall within the exclusionary part of the definition of “service” contained in CPA. As a necessary corollary, a complaint alleging deficiency / negligence in service against advocates would not be maintainable under CPA.
I have my reservations about the correctness of this judgment. With respect to the SC, this judgement can be faulted on many counts. However, until it is reviewed by the same bench or overruled by a larger bench or CPA is amended by Parliament, it will continue to operate.
Although the SC has not declared that all pending cases against advocates in consumer courts shall stand dismissed, the fate of these complaints will be the same. However, the aggrieved persons can always maintain a suit for damages. If you wish to pursue your case now in civil court, you should not face any difficulty on the ground of limitation because this entire period lost in consumer court will be excluded while computing the period of limitation for filing the suit.
If the SC has held that the complaints are not maintainable against advocates, can the complaints against doctors be now maintainable under CPA?
Abhay Datar, Girgaum
Fortunately for consumers and unfortunately for doctors, complaints against doctors and hospitals are maintainable under CPA. It is significant to note that the rjudgement of the SC in Bar of Indian Lawyers v/s DK Gandhi PS National Institute and another has been delivered by a two-member bench and it is in respect to of complaints against advocates. The Supreme Court, in IMA v/s VP Shantha case, has held that doctors services or medical services of a hospital are not services rendered under a “contract of personal services”.
Contract of personal services implies “master-servant” relationship where the master who hires the service for consideration is in an authoritative or commanding position. In case of a patientdoctor contract, the patient is not in a position to instruct the doctor and hence the SC has held that the contract between the patient-doctor is a contract for personal service. The SC has held that complaints of medical negligence are maintainable under CPA.
(Advocate Shirish Deshpande is chairman, Mumbai Grahak Panchayat. Queries may be mailed to shirish50@yahoo.com)
